Paper Calls SCOs Position Desperate

By Peter Galli  |  Posted 2003-11-24

Paper Calls SCOs Position Desperate

The war of words between The SCO Group and the open source community continues unabated, with SCOs legal claims coming under fire again in a paper written by Eben Moglen, a professor of law at Columbia University Law School and the general counsel of the Free Software Foundation.

Moglen, who has been very vocal on this issue, wrote the latest paper, titled "SCO: Without Fear and Without Research," based on a recent presentation given to the Open Source Development Labs User Advisory Council in Portland, Ore.

The paper will be published on Monday by the Open Source Development Lab as its third position paper on the matter.

"SCOs legal situation contains an inherent contradiction. SCO claims, in the letters it has sent to large corporate users of free software and in public statements demanding that users of recent versions of the kernel take licenses, that the Linux program contains material over which SCO holds copyright," Moglen says in the paper.

SCO has also brought trade secret claims against IBM, alleging that IBM contributed material covered by non-disclosure licenses or agreements to the Linux kernel. But it had distributed, and continues to distribute, Linux under the GPL (General Public License)—thereby publishing its supposed trade secrets and copy-righted material under a license that gave everyone permission to copy, modify and redistribute, Moglen said.

"If the GPL means what it says, SCO loses its trade secret lawsuit against IBM, and cannot carry out its threats against users of the Linux kernel. But if the GPL is not a valid and effective copyright permission, by what right is SCO distributing the copyrighted works of Linuxs contributors, and the authors of all the other copyrighted software it currently purports to distribute under GPL?" he questions.

IBMs counterclaim against SCO raised that question with respect to Big Blues contributions to the Linux kernel. Under the GPL section 6, no redistributor of GPLd code can add any terms to the license; SCO has demanded that parties using the Linux kernel buy an additional license from it, and conform to additional terms.

Under GPL section 4, anyone who violates GPL automatically loses the right to distribute the work as to which it is violating. IBM therefore rightly claims that SCO has no permission to distribute the kernel, and is infringing not only its copyrights, but those of all kernel contributors, he said.

"Unless SCO can show that the GPL is a valid form of permission, and that it has never violated that permissions terms, it loses the counterclaim, and should be answerable in damages not only to IBM but to all kernel contributors."

Next page: Did IBM paint SCO into a corner?

Page Two

"IBMs counterclaim painted SCO into a corner on the subject of the GPL. Not only the facts but also the law are now fundamentally against SCOs increasingly desperate position. SCO and its predecessor, Caldera, have benefited enormously from the protections of the GPL.

"Thanks to the GPL, SCO has been able, for example, to use the invaluable work of compiler designers and implementers around the world who have made GCC the premier cross-platform C compiler," he says in the paper.

Customer applications run on SCOs System V Unix because of GCC, to which SCO contributed modifications particular to its system, and for which it assigned copyright to the Free Software Foundation. Caldera and SCO could not have marketed a usable operating system product without the contributions of the free software community, Moglen says.

"SCO was happy to take the benefits, but it has unethically sought to avoid its responsibilities. The law does not permit SCO to have it both ways. So now it has become time for SCO and its lawyers to pound the table," he says in the paper.

SCOs response to IBMs counterclaim has been a round of absurd attacks on the GPL, its users and its author, the Free Software Foundation. The GPL, SCOs answer to IBMs counterclaim alleges, violates not just federal statutes but also the United States Constitution.

"How a private copyright holder can violate the US Constitution by giving others permission to copy, modify and redistribute its work SCO does not deign to say. Legal theories arent secrets; if SCOs lawyers had anything to offer in support of this novel proposition, they would offer it," Moglen said.

"Not one case decided in the long history of US copyright affords support to this ridiculous conception of an unconstitutional copyright license. No lawyer of my reasonably broad acquaintance, no matter what his or her view of the GPL may be, takes this moonshine seriously. After failing on the facts, failing on the law, and raising no more than derisive laughter from pounding the table, even the proverbial shyster is out of luck. What will we see next from SCO, an attack on the umpire?" he asks.

Moglen also devotes a significant portion of his paper to the code SCO showed at its annual SCO Forum event in Las Vegas in August, which it claimed was a literal copyright infringement in Linux of Unix code.

"What the Las Vegas examples actually demonstrated was that SCOs factual claims were irresponsibly inflated when they werent being kept artfully secret. With the facts running against them even when the facts were of their own choosing, it was unsurprising that after August SCO turned to the law. But the law was not on their side either," Moglen said.

This paper follows SCOs latest threats, made last week in Las Vegas, that it plans within 90 days to sue a Linux user over copyright infringement related to its Unix System V code that it alleges is included in Linux.

SCO is also taking aim at Novell Inc., which recently announced that it will buy SuSE Linux AG. SCO is considering possible legal action against Novell once it completes the SuSE acquisition.

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